The Union Government, on March 6th, 2020 constituted a delimitation commission for redrawing the electoral constituencies – parliamentary as well as assembly — of the Union Territory of J&K along with four other states.
Functionally speaking, it is a periodic exercise in electoral administration. Yet, politically it decides two issues of immense importance; first, the number of representatives, the Members of Parliament across all the states as well as Members of the Legislative Assembly within each state. Second, demarcating the boundaries of the parliamentary and assembly constituencies.
If electoral boundaries are not periodically adjusted, population inequities develop across states, regions, divisions, and districts. As such, Article 82 of the Constitution of India stipulates that delimitation is to be conducted after every decadal population census. This is to ensure current and contemporary representation of people.
The delimitation commission, headed by Justice Ranjana Desai, is the fifth one since independence. However, it comes at a time when there is a Constitutional freeze on the increase or decrease of the parliamentary or legislative assembly seats.
The Constitution of India was amended twice; the 42nd Amendment in 1976 and the 84th Amendment in 2002 deferring the delimitation of constituencies till the first population census after 2026, i.e. effectively till 2031. As a result till now the 1971 population census has been the basis of delimitation of parliamentary constituencies and 2001 the readjusted basis for legislative assembly delimitations.
Given this background, the delimitation commission that has been set up is not a routine one. It is no coincidence that all the four states where delimitation exercise is being conducted are border-states, with heightened ethnic consciousness. Also, barring Assam, in all other states, the national minorities are in a localised majority.
Most significantly, even though the delimitation commission has been set up under the Delimitation Act of 2002, it will redraw the constituencies of J&K in accordance with the provisions of the Jammu and Kashmir Reorganisation Act, 2019. For all others, Assam, Arunachal Pradesh, Manipur and Nagaland the delimitation will be done in accordance with the provisions of the Delimitation Act, 2002
By bypassing the Delimitation Act of 2002, in the case of J&K, the delimitation commission’s mandate has been severely compromised ab initio.
The J&K Reorganisation Act 2019 modified the law of enfranchisement of J&K. In conjunction with the Domicile rules, voting rights for the state assembly which were restricted only to permanent state subjects of J&K have now been extended to all those who meet the watered down criteria of “domicile”. This threatens to alter the electoral demography of Kashmir in the long run.
For now, going further down the enfranchising system, the J&K Reorganisation Bill, 2019, has already decided two of the three key elements in the delimitation of assembly constituencies in J&K.
First, the number of electors has already been decided, by stipulating the 2011 population census as the base. Section 63 (Special provisions as to readjustment of Assembly and Parliamentary Constituencies) of the J&K Reorganisation Act 2019, says that “until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust” constituencies and “any reference to the “latest census figures” shall be construed as a reference to 2011 census”.
Using the population census of 2011 is the real reason for not conducting delimitation under the aegis of the Delimitation Act! It would not have been otherwise possible to fix 2011 as the census without violating the Constitution of India. For all other states, including the four going in for delimitation with J&K, the base is the population census of 2001.
Second, the number of representatives to the legislative assembly has been increased from 107 to 114 without any reference to either the Delimitation Act of 2002 or the delimitation commission. The Delimitation Act of 2002 in clause 8(b) empowers it to decide on the “the total number of seats to be assigned to the Legislative Assembly of each State and determine on the basis of the census figures”.
It is also important to note that the seats have been increased by fiat without indicating any criteria or basis for the increase. This make the increase in the size of the legislative assembly arbitrary and ad hoc.
Having already decided on the number of electors as well as the number of elected, the only part of delimitation that has been left to the Commission is the electoral cartography; the redrawing of boundaries and enclosing people within the constituency framework.
How will the die be cast?
To be sure, there are no prescribed principles for demarcating territorial constituencies. Even the Parliamentary Standing Committee constituted on free and fair Election had observed that “delimitation of constituencies as provided in the statue is without any principle governing any such delimitation”. In fact, clause 7 of the Delimitation act of 2002, states that it is free to “determine its own procedure”. This leave matters rather open ended.
To make matters less transparent, even though the delimitation commission is not a statutory body, Article 329 stipulates that “the decision of the Delimitation commission, the Commission’s verdict, is final and cannot be challenged even in the Supreme Court”.
Given the fact that the in the case of J&K, the mandate of delimitation commission has already been severely curtailed, and that it has to be dependent on Government for its each and every of activity, doesn’t inspire much confidence.
In case of difference of opinion in the Commission, the opinion of the majority shall prevail. This is fine but the catch is that of the three members of the Commission, two members are ex-officio members! These ex-officio members, who are serving officials, can even overrule the Chairman of the Commission. So it is not unnatural to be concerned that the delimitation commission can be used as an institutional mechanism for legitimising a political agenda. It is this that underlies the angst and anxiety in Kashmir. These are facts, not fiction.
And in feeling anxious, Kashmiris have the history of the delimitations in the country on their side. For instance, Sachar Committee noted with concern that Muslim concentration assembly constituencies in UP, Bihar and West Bengal have been declared as “reserved constituencies” thereby systemically denying Muslims political participation.
Similarly, for limiting their influence on voting, apart from a routine non-inclusion of Muslims in the voter lists, Muslim-majority areas have been dispersed across seats so that their numerical strengthen is diluted. A case in point is Assam where the Muslim-majority pockets of Kajidahar, Chandpur and Nagdhirgram in the Sonai constituency were amalgamated with the Dholai seat where scheduled Castes and OBC’s hold sway. The Muslim vote got numerically subsumed. This is the Indian version of what the Americans practice: gerrymandering.
The important point is that in Kashmir, unlike anywhere else in the world where the minorities are insecure about delimitation, here it is the majority that is concerned. Indeed, the chest thumping by the state minorities has been met with breast beating by the mainstream majoritarian political parties of the Valley.
Stunned and shaken by the audacious abrogation of Article 35A and Article 370, Kashmiris are now apprehending demographic change being engineered in the Valley. While that may take three decades and more, what could be staring Kashmir in the face right now is the real possibility of the demographic majority being converted into a political minority.
The fact is that constituency redefinition can provide ample scope for manipulation along communal contours in such a manner that the advantages of the majority are diluted and that of the regional minority enhanced.
A new boundary can not only change the outcome of an election, the pattern of electoral representation in the legislature, and the government, it will have an impact on the articulation of even the watered down regional demands in federal context. That is widely perceived to be the end game.
This will, however, depend on how the delimitation commission approaches the specificity of J&K, the history of its earlier delimitations, the regional representation issues and the generic guidelines that have been followed by previous delimitation commissions. These we shall discuss in the forthcoming column.
(This is the first of a three part series)